In this article, our legal team delves into the various aspects of pregnancy protections in Ireland, including the legal framework, types of pregnancy discrimination, available remedies, and the importance of employers going beyond legal compliance to foster an inclusive and supportive workplace for pregnant women.
At Setanta Solicitors, we work to ensure both employers and employees have a comprehensive understanding of these issues, so we can work together to create an environment where pregnancy is respected, valued, and protected in the workplace.
Maternity Leave Protections
National Maternity Leave protections
As a woman in the workplace, you are entitled to a range of protections and benefits related to your pregnancy under the Maternity Protection Act of 1994, amended in 2004. In terms of maternity leave, under this act, you are entitled to twenty-six weeks of maternity leave, with an option to request an additional sixteen weeks.
EU protections
These national protections are further bolstered by EU protections, and some additional protections are also added. For example, European courts have determined that pregnancy-related illnesses and complications should be addressed in alignment with the company’s sick leave policy. Moreover, pregnant employees are entitled to paid time off for antenatal classes, a provision that also extends to the father of the child for the final two antenatal classes.
Pay during Maternity Leave
One common misconception is that your employer is legally obliged to pay you during your Maternity Leave. This is not the case.
Unless explicitly stated in your employment contract, it is advisable to assume that your employer will not provide payment for your maternity leave. Instead, maternity leave is typically applied for through government channels under social welfare legislation, and the amount received is generally around 75% of your total pay, although this can vary.
Protection during Breast-Feeding
In terms of breast-feeding protections, Irish law provides for a provision that allows for a 60-minute time off or reduction per 8-hour workday, without any loss of pay, during the initial 26 weeks after childbirth.Protection against unfair treatment at work
Pregnancy-related Dismissal
In Ireland, pregnant women are provided with protection against discriminatory dismissal, unfair dismissal, and workplace discrimination through the Employment Equality Acts of 1998-2015 and the Unfair Dismissals Act 1977. Furthermore, under the Maternity Protection Act 1994, women are granted absolute protection from dismissal or notice of dismissal during pregnancy and maternity leave.
In situations where a dismissal is perceived to be related to pregnancy, there are two available legal actions: a claim of unfair dismissal or a claim of discriminatory dismissal. It’s important to note that you can only choose one of these claims to pursue.
A discriminatory dismissal claim asserts that you were terminated specifically because of your pregnancy, indicating that discrimination based on pregnancy was the motivating factor behind the dismissal. On the other hand, an unfair dismissal claim alleges that you were terminated in a manner that was unfair and did not adhere to proper procedures. In other words, if you pursue a claim of unfair dismissal, you are not required to prove that the reason for your dismissal was discriminatory.
Discriminatory dismissal
Discriminatory dismissal requires the complainant to provide initial evidence suggesting that their pregnancy was the motive behind their termination. Although proving such discrimination can be difficult, the potential compensation for a successful claim is typically higher. It’s worth noting that unlike unfair dismissal, discriminatory dismissal claims do not require one year of service with the employer.
In order to have a successful discriminatory dismissal claim the court must rule that an employee was terminated for reasons unrelated to her pregnancy. This means that your employer will be given a chance to demonstrate that there was no discrimination involved and that the dismissal is justified on valid, non-discriminatory grounds.
In practice, it has been rare for employers to successfully argue this point. For instance, in the case of Campbell v Bank of Ireland Private Banking, the company presented evidence of a decline in business, but it was deemed insufficient justification to excuse the dismissal.
Equality dismissal awards are normally received free of tax.
Unfair Dismissal
Unfair dismissal is often pursued as an alternative to discriminatory dismissal, primarily due to the inherent difficulty in proving discrimination. It can be comparatively easier to argue that fair procedures were not followed and that the termination was unjust. In such cases, the burden of proof lies with the employer to provide evidence demonstrating that fair procedures were indeed followed.
Unfair dismissal awards are usually subject to income tax.
Other Pregnancy Discrimination Issues
The Employment Equality Acts of 1998-2015 explicitly state that treating a pregnant woman less favorably than another employee constitutes direct discrimination.
However, understanding how this definition applies to your specific situation can be challenging, especially when there is no directly comparable employee to use as a reference for comparison. However, it is important to note that EU courts have ruled that there is no requirement for a specific comparison.
Instead, what is required by a court of law is for you to demonstrate that there was behaviour that appeared discriminatory on its face. If the employer fails to provide a valid justification for such behavior, they would be held responsible for the discrimination.
- Examples of common claims would be denied pay increases or promotions
What are my rights if I am refused employment due to my pregnancy?
Refusal of an employment opportunity based on pregnancy is considered discrimination under the Employment Equality Acts of 1998-2015.
This type of case is relatively uncommon in the legal realm because unlike an employment contract, an interview invitation does not confer any rights to the employee, such as the right to work or be paid. The only guaranteed right for interview applicants is the right to a fair process.
Therefore, a pregnant interviewee must demonstrate apparent discrimination in the job appointment process, presenting evidence of unfairness or an irrational outcome. The employer will then be given a chance to defend their decision. They must give sufficient evidence to show that their choice was made fairly. If this defence fails the claim for pregnancy discrimination will be successful.
To better understand this type of claim, let’s consider a typical case that would succeed
An example of a successful initial claim of apparent discrimination;
Jane applied for an interview, possessing a relevant degree and substantial industry experience. However, Jane disclosed her pregnancy during the interview. After being rejected, she discovered that the successful applicant had no relevant degree and lacked industry experience.
An example of an unsuccessful defence by the employer;
The company argued that they did not hire Jane due to financial considerations. They anticipated her absence during maternity leave and decided against selecting her, despite no further evidence to support their decision.
Remedies
If you believe you are facing discrimination based on your pregnancy, the initial step you should take is to pursue an internal remedy. This entails submitting a formal, written grievance to a Human Resources representative, your supervisor, or your employer, clearly outlining your concerns and providing all relevant details.
However, if your employer fails to address your complaint adequately or if you experience dismissal from your employment, it is advisable to consider seeking legal advice. If a solicitor determines that your case is strong enough to proceed, they will typically pursue two types of remedies; a settlement or a legal case.
Legal Case
Claims for pregnancy discrimination cases are brought to the Workplace Relations Committee (WRC), and then the Labour Court, if they are appealed. If your claim is successful, in court, you will receive financial compensation. According to EU case law, this amount must be enough to re-imburse your economic loss and to deter this kind of behaviour in future.Settlement
A settlement refers to a resolution which is reached outside of court. It is a mutually agreed-upon solution to resolve the dispute and it is legally binding. A settlement usually involves financial compensation for the complaint, but may also involve an order for a change of policy or for specific actions to be taken.
Companies often attempt to settle cases to prevent them from progressing to court, as settlement agreements typically include provisions that prevent further legal action by the complainant. There are various reasons why companies look to avoid pregnancy discrimination claims reaching the courts. For instance, Workplace Relations Committee Hearings are conducted publicly, which companies may wish to avoid for reputational reasons. Additionally, settling avoids lengthy court proceedings and generally leads to reduced legal fees for both parties.
However, it is important to remember, as the complainant you are not obliged to take a settlement outside of court. At Setanta Solcitors, we have vast experience both in court and in settlement negotiations and our solicitors will support you no matter which avenue you chose.
Conclusion; Looking Beyond the Law
Ireland is widely recognized for its strong legal protections for pregnant women and its diligent implementation of EU laws in this regard. However, as employers, it is essential to go beyond legal compliance. Although workplace discrimination based on pregnancy is explicitly prohibited, it does not mean that Irish women do not experience it nationwide.
Pregnancy discrimination can manifest in various subtle ways, some of which may not be explicitly addressed by the law. Additionally, even when women encounter pregnancy discrimination, which they recognize as prohibited, the majority will choose not to report it. Studies in Ireland reveal that while 21% of employees express dissatisfaction with their treatment at work during pregnancy, over 70% of this group take no action, whether within or outside the workplace.[1].
Therefore, as a company, we advocate not only for addressing pregnancy discrimination claims as they arise but also for proactively working with compassion to prevent any form of discrimination. It is important to acknowledge that pregnant women may experience discrimination but feel unable to file formal complaints, and the responsibility should not solely rest on them to take action.
[1] Pregnancy at Work: A National Survey Published by the HSE Crisis Pregnancy Programme and the Equality Authority June 2011
